Torts — Premises liability — Assumption of risk — Doctrine of express assumption of risk is applicable only to express contracts not to sue and injuries resulting from contact sports

42
Fla. L. Weekly D1141aTop of Form

Torts
— Premises liability — Assumption of risk — In action by plaintiff who was a
member of defendant church, who played in band at church, and who tripped and
fell over a bass player’s unsecured cord during rehearsal, alleging negligent
failure of defendant to maintain premises in reasonably safe condition, it was
error for trial court to enter summary judgment for defendant on basis of
express assumption of risk doctrine — Doctrine of express assumption of risk
is applicable only to express contracts not to sue and injuries resulting from
contact sports — Plaintiff’s conduct of repeatedly walking across stage with
unsecured electrical cords on it is properly characterized as implied
assumption of risk that must be evaluated by jury under principles of
comparative negligence

(PER CURIAM.) Thomas and Judy
Petruzzella, husband and wife plaintiffs below, timely appeal a final summary
judgment in favor of Church on the Rock of Palm Coast, Inc., defendant below.
The Petruzzellas contend that the trial court improperly applied the express
assumption of the risk doctrine in granting a summary judgment to the property
owner in this trip and fall negligence case. We agree and reverse.

Thomas Petruzzella was a volunteer
musician drummer and member of the Church on the Rock of Palm Coast, Inc. In
May of 2011, he tripped on the bass player’s unsecured cord and fell off the
stage during a rehearsal. As a result of the fall, he sustained substantial
injuries. The Petruzzellas filed suit against the property owner alleging that
the Defendant was negligent for failing to maintain the premises in a
reasonably safe condition; that the Defendant failed to correct a dangerous condition
which the Defendant either knew or should have known of by using reasonable
care, and his wife Judy Petruzzella’s claim for loss of consortium. The
Defendant answered the complaint by generally denying the allegations of
negligence and raised the affirmative defense of contributory negligence on the
part of Mr. Petruzzella. Discovery in the case revealed that Mr. Petruzzella
had been a member of the church since 2008 and, beginning in 2009, served as a
member of the Church’s Praise Group. He performed on the Church’s stage, either
in rehearsal or during a service at least three to four times a week and, as a
result, he was familiar with the various cords attached to the instruments that
would be unsecured. Discovery further revealed that no person other than Mr.
Petruzzella had ever been involved in any accident causing injury due to the
cords being unsecured.

The Defendant moved for summary
judgment, arguing that “[s]ummary judgment must be granted in favor of
Defendant because Plaintiff Thomas Petruzzella knew of the alleged dangerous
condition and willfully accepted the risk”, asserting “[t]he condition itself
was not concealed, but was open and obvious”, that “Defendant breached no duty
to Plaintiffs because Plaintiff Thomas Petruzzella’s injuries were not in fact
caused by any flaw in the facility, as the facility had been previously used
for years without any similar or related injuries”, citing to various cases on
negligence and the open and obvious doctrine, but no cases on the affirmative
defense of assumption of the risk.

The Petruzzellas filed a response,
alleging that their case was not pled as a failure to warn case, but as a
failure to maintain the premises in a reasonable safe condition and that the
open and obvious danger doctrine may discharge a landowner’s duty to warn but
does not discharge the landowner’s duty to maintain the premises in a
reasonably safe condition.

The Defendant filed a reply to the
Petruzzellas’ response, expressly asserting a new ground for summary judgment
— express assumption of the risk.1

Following a hearing on the matter,
the trial court found that there were no material fact issues and that the
Defendant was entitled to summary judgment based upon the express assumption of
the risk, that Mr. Petruzzella was aware of the condition of the stage and
either knew or should have known of the risk of tripping over the unsecured
cords on the stage, yet continually, repeatedly, and expressly assumed the risk
of performing on that stage over a two-year period up until and including the
date of the accident.

The trial court’s finding that Mr.
Petruzzella expressly assumed the risk of performing on that stage is contrary
to the law of Florida regarding express assumption of risk, implied assumption
of risk, and principles of comparative negligence. In the case of Blackburn
v. Dorta, 348 So. 2d. 287 (Fla. 1977), and more recently, in Mazzeo v. City
of Sebastian, 550 So. 2d 1113 (Fla. 1989), the Florida Supreme Court
specifically discussed the continuing viability of the doctrine of assumption
of risk following the rule of comparative negligence and whether the doctrine
should be expanded beyond express contracts not to sue and injuries resulting
from contact sports. The Court specifically found that the doctrine of express
assumption of the risk should not be expanded beyond express contracts
not to sue and injuries resulting from contact sports, that conduct
characterized as implied secondary assumption of risk, which is unreasonable in
nature, should be evaluated by the jury under the principles of comparative
negligence. Mazzeo, 550 So. 2d at 1114-17. Here, given that no express
contract or contact sport is involved, Mr. Petruzzella’s conduct of repeatedly
walking across a stage with unsecured electrical cords on it is properly
characterized as an implied assumption of risk that must be evaluated by the
jury under principles of comparative negligence. Accordingly, the summary
judgment in favor of the Defendant, Church on the Rocks of Palm Coast, Inc., is
reversed, and the matter is remanded for further proceedings consistent with
this opinion.

1We note that the Defendant’s reply
is not the same thing as asserting an affirmative defense in a pleading; and
that assumption of risk is an affirmative defense that must be properly pled in
the answer pursuant to Florida Rule of Civil Procedure 1.110 (d), which was not
done in this case.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.